Chander Bhan Gupta and others vs State of Haryana and others

P.S. Pattar, J.—This is a petition filed by Chander Bhan and 10 other persons, residents of Palwal and other villages situated in Tehsil Palwal, District Gurgaon, u/s 482 Criminal Procedure Code, to quash the Report dated 14.11.1975, u/s 107/151, Criminal Procedure Code, filed against them by the police in the Court of the Sub-Divisional Magistrate Palwal, and also to quash the orders dated 15.11.1975, passed by the Magistrate demanding bail frome them for appearance in Court and to quash the notice issued by the Magistrate u/s 111, Code of Criminal Procedure copy whereof is Annexure P-3 to the petition.

Shri Karan Singh A.S.I. Police Station City Pawal tiled the calendar u/s 107/151, Criminal Procedure Code, Copy whereof is Annexure P-1 to the petition, against the Petitioners in the Court of the Sub-Divisional Magistrate, Palwal. The contents of Annexure P-1 read as follows:

In this case the facts of the Calendar are like this: A special informer informed that Jan Sangn workers today at about 2 P.M. will fake out a procession against the Government and will cause damage to the Government vehicles and Government buildings and that if they are not stopped, there can be immediate apprehension of breach of peace. On receipt of this information I.A.S.I., along-with Devi Dial H.C. Mukhtiar Singh 1041, Mohinder Singh 1064, Mahabir Singh (sic)15 and Sikand Singh 354 reached the old Mandi near Punjab National Bank, where the above-mentioned persons were talking with each other and were saying that today they will take vengeance for imposition of Emergency and ban on the Sangh and they will cause damage to all the Government buses and buildings which will fall on the way. Upon this I intervened and advised them that it will cause loss to the country, but this fell flat on them and they tried to run towards the Post Office. They were stopped with the help of the companions They created such a situation that if they were not arrested u/s 107/151 they shall have positively committed an offence cognizable by the police. They were duly arrested and are produced before the Court. The aforesaid be called upon to furnish security of Rs. 5,000/- each for keeping peace for a period of one year." On the next day, the Petitioners were produced in custody by the police in the Court of the Sub-Divisional Magistrate, Palwal, who passed the following order, copy whereof is Annexure P-2 to the petition:

The accused are present in police custody. If they furnish bail bonds in the sum of Rs. 5,000/- each for appearance in Court, they be released on bails, otherwise should remain in the judicial lock up. To come up before the Court on 2(sic)th November, 1975.

On 11th December, 1975, the Magistrate gave notice to the Respondents u/s 111, Criminal Procedure Code, copy whereof is Annexure P. 3 to the petition.

This petition has been filed to quash Annexure P-1, P-2 and P-3 and also the subsequent proceedings taken by the Sub-Divisional Magistrate, Respondent No. 2. Notice of the petition was issued to the Respondents, who contested the same.

The first contention of Mr. Gian Singh, the Learned Counsel for the Petitioners, is that the proceedings against the Petitioners are an abuse of the process of the Court, that the allegations contained in the Calendar, Annexure P-1 do not attribute any overt act to the Petitioners and the provisions of Section 107, Criminal Procedure Code, are not attracted and, therefore, Annexure P-1 should be quashed

Section 482, Criminal Procedure Code, lays down that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The power to quash proceedings etc., u/s 482, Criminal Procedure Code, can only be exercised if it appears to the High Court that there is a legal bar against the institution or continuation of the proceedings or if the allegations made against the Petitioner do not constitute any offence etc etc., even if the facts alleged are accepted as correct or when the allegations constitute the offence but there is no legal evidence to prove the same.

Section 107, Criminal Procedure Code, is aimed at persons who cause a reasonable apprehension of conduct likely to lead to a breach of the peace or a disturbance of public tranquility or to do wrongful act that may be probable to cause breach of peace or tranquility. The gist of Chapter VIII of the Code of Criminal Procedure pertaining to security for keeping the peace and be of good behaviour is prevention of crimes and disturbances of public tranquility and breaches of the peace and there is no need to prove overt acts although if overt acts have taken place, they will have to be considered. The action being preventive is not based on overt act but on the potential danger to be averted, end the provisions are essentially conceived in the public order and also in the interest of general public vide Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, . A bare reading of Annexure P-1 shows that the police got information that the Petitioners wanted to take out a procession against the Government and to cause damage to the Government vehicles and Government buildings and if they were not stopped, there could be immediate apprehension of breach of peace. Karan Singh ASI reached the spot where the Petitioners were standing and he found that they were talking to each other that they will cause damage to the Government buses and buildings, which will fall on the way. Karan Singh ASI advised them that if they indulged in those acts then they would be causing loss to the country, but they did not listen to him and tried to run away towards the Post Office, He stopped them with the help of the members of his party with great difficulty and as there was danger of breach of peace and public tranquility he arrested them. In view of the allegations in Annexure P-1, it cannot be said that there was no allegation of any overt act to be committed by the Petitioners in the Calendar Annexure P-1. For all these reasons, it is held that there is no substance in the contention of the counsel for the Petitioners to quash Annexure P-1 and the same is rejected.

Mr. Gun Singh next contended that the notice given to the Petitioners u/s 111, Criminal Procedure Code, on 11th December, 1975 by the Magistrate, copy whereof is Annexure P. 3, is ill gal because Magistrate did not give a finding that in his opinion there was sufficient ground for proceeding against them, and, therfore, it may be quashed. It is clear from the perusal of this order Annexure P-3 that the Magistrate after perusing the report dated 14th November, 1975 filed by the police came to the conclusion that there were sufficient grounds for proceeding against them u/s 107, Criminal Procedure Code, and then he ordered them to show cause why security in the sum of Rs. 1000/- with personal bond in the same amount for keeping peace for a period of one year should of be demanded from each of them. In this notice all the faes and circumstances and the intended overt acts alleged in the police aiendar are given. After considering them, he formed the opinion that there were suffcient grounds to proceed aghast them. In the notice the details of the allegations against the Petitioner are given and the notice is perfectly valid.

The counsel for the Petitioners relied on M.C.S. Rao and Others Vs. State of Mysore, , wherein a single Bench of the Mysore High Court held that a plain reading of Section 107, Criminal Procedure Code, makes it abundantly clear that it is absolutely necessary that the Magistrate should consider the facts contained in the information received by him and form an opinion that the tacts give rise to grounds which are sufficient in his opinion for proceeding u/s 107, Criminal Procedure Code, and in the absence of information of such opinion by the Magistrate proceedings u/s 107 cannot be instituted. To the same effect was the law land down is Chinnaya Chettiar Vs. State of Mysore, , and Jamil-ul-Rehman and Ors. v. State 1973 P.L.R.D. 152.

In Jmmul ul-Rahman''s case (supra), the Magistrate after considering the information received by him from the police did not form an opinion that there was sufficient around for proceeding against the Respondents. In the notice no mention of the allegations against the Respondents was made and it was not a speaking order. Therefore, this case is distinguishable and does not apply to the facts of the present case. In the instant case, as mentioned above, the Magistrate after considering the intimation received from the police formed the opinion that there were sufficient grounds for proceeding against them and then issued the show-cause notice u/s 111 Criminal Procedure Code. In the order Annexure P-3, he gave the details of ail the allegations against the Petitioners. None of these decisions is, therefore, applicable to the present ease. The second contention of the Learned Counsel for the Petitioners, is also rejected.

Lastly, it was contended by the counsel for the Petitioners that the order dated 15th November, 1975, Annexure P-2 to the petition, is illegal as no such order could be passed by the Magistrate under any of the provisions contained in Chapter VIII, Criminal. Procedure Code. In support of this contention reliance was placed on Dhaneshwar Mallah and Others Vs. The State of Bihar, wherein a Division Bench of the Patna High Court, held that in view of the decision of the Supreme Court in Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, , the Magistrate cannot ask a person in respect of whom order u/s 112, Criminal Procedure Code, has been made, to furnish security or bail for his appearance in the Court.

In Mayengbam Yaima Singh v. Manipur Administration AIR 1964 Mani. 62, it was held as under:

Section 117 (Criminal Procedure Code) prescribes the procedure to be adopted when any person appears or is brought before a Magistrate in execution of a summons or warrants. The person can at best be asked to execute a bond, with or with out sureties for keeping the peace or maintaining good behaviour until the conclusion of the enquiry. There is no provision under the Security Proceedings in Chapter VIII, Criminal Procedure Code, either to order bail for appearance in Court or to order him to jail custody in default of giving such bail.

Similar was the view taken by Hon''ble Guiral J. in Balbir Singh Ex. M.L.A. v. State of Punjab Cr. M. 4177 M. of 1975 (Criminal Miscellaneous No. 4177-M of 1975), decided on November 17, 1975. It was held that in view of the law laid down in Madhu Limaya v. Ved Murti AIR 1971 SC 2481, and Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, the Magistrate had no right to ask for a personal bond from the Petitioners for appearance in Court.

In Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, in paras Nos 48 and 49 of the judgment it is observed as under:

before we leave this topic it is necessary to emphasise that there is no room for invocation of other provisions of the Code such as Sections 55 or 91. In some of the cases of the High Courts, to which reference is not necessary, recourse has been taken to these provisions in aid of Chapter VIII. Apart from the fact (which we have sufficiently emphasised above) that Section 55 deals with special cases of arrest and cannot be made applicable. Section 107 itself speaks that the procedure of Chapter VIII should be followed, where Sections 112, 113 and 114 of the Code prescribe their own procedures. Similarly, Section 91 may be available til the order u/s 112 is drawn up. After it is drawn up the Magistrate has to act u/s Sections 113 and 117(1). Then there is no room for Section 91. The reasoning in some of the cases of which Vasu Deo Ojha and Others Vs. State of Uttar Pradesh and Others, is an example, is fallacious.

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There is also no question of bail to the person because if instead of an interim bond, bail for appearance was admissible Chapter VIII would undoubtedly have said so. Further bail is only for the continued appearance of a person and not to prevent him from committing certain acts. To release a person being proceeded against under Sections 107/112 of the Code is to frustrate the very purpose of the proceedings unless his good behaviour is ensured by taking a bond in that behalf.

It was further held in para No. 43 of this judgment that the enquiry u/s 117, Code of Criminal Procedure 1898 (corresponding to Section 116 of the Code of Criminal Procedure, 1973), is to ascertain the truth of the necessary information received by the Magistrate and pending the completion of the enquiry an interim bond can be asked for if in mediate measures are necessary and in default to put the person in custody. If the Magistrate makes no effort to inquire into the truth of the allegations and adjourns the case from day to day and yet asks for an interim bond and places him in custody for default of it, it becomes merrily one sided and it cannot be described as an inquiry within an inquiry. It was further observed that in such cases some inquiry should be made before action is taken to ask for an interim bond or placing a person in custody in default of executing the same.

Similar was the law laid down in Madhu Limaya v. Ved Murti AIR 1971 SC 2481, (supra). It was held in this case:

A Magistrate can ask for an interim bond only if he cannot complete the enquiry and ''during the completion of enquiry'' postulates a commencement of the enquiry, which means commencing of a trial according to the summons procedure. The power to ask for an interim bond is not given to the Magistrete to postpone the case and hear nobody and yet ask a person to furnish a bond for good conduct.

Held on facts that if interim bonds were required from the Petitioners the Magistrate ought to have entered upon the inquiry and satisfied himself, atleast, prima-facie, about the truth of the information in relation to the alleged facts Without making any inquiry neither could the Magistrate order the Petitioners to be detained nor require them to execute a boad with or without surety.

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Where the person is already under arrest and in custody, his appearance is dependent not on his own volition but on the volition of the person who has his custody. Section 91 is, therefore, inappropriate in such a case.

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Section 117(3) presumes that unless person is bound over, he would be able to perpetrate that act which causes an apprehension of breach of peace. It is not necessary to take a bond from a person who is already in detention and is not released. The danger arise when the man is free and not when be is in custody. Section 344 deals with ordinary adjournment of a case and allows a person to be admitted to bail or the Court to remand him if he is in custody.

The legal position that emerges from the consideration of the above-mentioned decision is that in cases u/s 107, Criminal Procedure Code, the procedure laid down in Chapter VIII of the Coda as prescribed in Sections 111 to 118 of that Chapter is to be followed. The provisions of Section 88 of the Code may be invoked till the order u/s 111, Criminal Procedure Code, is passed, but thereafter there is no room for its invocation. Moreover, when a person is already under arrest, his appearance is dependent not on his own volition but on the volition of the person who has his custody and, therefore, Section 88 has no application to such persons.

After the passing of the order u/s 111, Criminal Procedure Code, the Magistrate has to act under Sections 112, 113 and 116 of the Code and he has no power to order the Respondent''s in such cases to execute bond with or without sureties for appearance in Court during the pendency of the enquiry and in case of default to remain in judicial custody, as there is no such provision in Chapter VIII of the Code. There is no question of bail to such persons because if instead of an interim bond u/s 116(3), bail for appearance was admissible, then Chapter VIII would undoubtedly have said so. Further, bail is only for the continued appearance of a person in court and not to prevent him from committing certain acts and, therefore, to release a person being proceeded against u/s 107 is to frustrate the very purpose of the proceedings unless it is ensured that he would keep the peace by making an order for interim bond u/s 116(3) until the conclusion of the enquiry.

The enquiry u/s 116, Criminal Procedure Code, is made to ascertain in the truth of the information upon which action has been taken and if immediate measures are necessary, then order for interim bond u/s 116(3) should be passed and in default of furnishing such bond the person should be detained in custody. Section 116(3) presumes that unless the person is bound down, he would be able to perpetrate that act which causes apprehension of breach of peace. Therefore, the Magistrate should enter upon the enquiry and satisfy himself, atleast prima facie, about the truth of the information and then pass an order for interim bond. Without making any enquiry the Magistrate cannot order for interim bond and indefault to order the detention of the person in custody. Sub-section (1) of Section 116 of the Code contemplates an immediate enquiry into the truth of the information, and it is pending the conclusion of the enquiry that an interim bond can be asked for. The Magistrate cannot adjourn the case and in interval send the person to jail if he fails to furnish bond u/s 116(3).

In the instant case the Petitioners were arrested on 14th November, 1975 and they were produced on 15th November, 1975 before the Sub-Divisional Magistrate, who passed the order, copy whereof is Annexure P-2 to the writ petition, asking them to furnish bail for appearance in Court The Petitioners did not furnish bail and since then they are in jail for the last about 21/2 months. The Magistrate did not commence the enquiry u/s 116(3) and passed the order u/s 111 of the Code copy whereof is Annexure P. 3, on 11th December, 1975 ft is undisputed that no order for interim bail u/s 116(3) of the Code has been parsed in this case uptil now. After the arrest of the Petitioners the Magistrate deal with the case in a casual manner and passed the order u/s 111. Criminal Procedure Code, after one month of their arrest. When the Petitioners were produced before him on 15th November, 1975, it was the duty of the Magistrate to pass the order u/s 111, Criminal Procedure Code, but he did not do so for reasons best known to him. He had no business to adjourn the case for passing order u/s 111. In view of the law laid down by the Supreme Court in the above-mentioned decisions, the order Annexure P. 2 dated 15th November, 1975 of the Magistrate asking the Petitioners to furnish bail for appearance in Court is invalid and illegal and the same is quashed. The detention of the Petitioners is illegal and they are ordered to be released from custody forthwith unless required in any other case.